LAWS1114 Lecture 13


Exam Stuff.


  • Monday 15, Tuesday 16 – Exam consultations
  • Don’t talk about everything since it shows you don’t know what you’re talking about … and it takes up time you could have spent talking about the relevant areas of law.
  • In Torts A: Negligence – DOC, Breach, Causation, Remoteness, Damages
  • In Torts B: Negligence – if you think you can identify the certain area that needs to be addressed (maybe the focus is more on duty in the question) spend more time on that area than the other aspects
  • When we looked at omissions: relationships between teaching authorities/students etc.
    • Those cases: There was no doubt that the teachers owed the children a duty of care. The question was whether there was a breach.
    • Since the plaintiffs were unable to provide an alternative safety system, there was no breach.
    • These cases focused on breach.
  • For there to be vicarious liability, a tort must be committed.
  • Your guide to answering questions is in the approach taken in the lecture.
  • With past exams …
    • 2009 Question 3: Have a look at the first two paragraphs.
    • 2009 Question 4.
    • 2008 Question 3.
    • 2008 Question 4: Don’t address the last sentence.
  • In Stuart v Kirkland-Veenstra, there’s a reference to ‘breach of statutory duty’
    • French CJ says that it is not a case of breach of statutory duty. The other judges left it open
    • Breach of statutory duty: a separate common law tort: p. 140.
      • If a particular statute places a particular obligation/power on a statutory authority and that has not occurred (and if this results in damage), this is a separate common law claim.
  • On vicarious liability, in Stevens v Brodribb
  • In Hollis v Vabu, High Court took the more general statement in Brodribb and applied to this case.
    • In terms of who owns the equipment, the bicycle was considered recreational and did not make it an independent contractor.
    • For skilled employee … the fact that the case said that there did not have skills does not mean that all employees have no skills (it was a specific comment for the circumstances of that case)
  • Defamation
    • First question: Is it capable of being defamatory as a question of law
    • Issue of whether something is capable of being defamatory as a question of fact.
      • The HCA in Radio 2UE said in [41]-[49] made some relevant obiter dicta comments
  • At the question of facts stage, when something is put to the jury, there was an issue of whether when deciding whether something is defamatory, the member of the jury would put the standards of a section of the community (sectional standard approach)
  • In these paragraphs, HCA has clarified that the jury should consider the general community standards.
  • In answering a hypothetical on this, you have to illustrate and appreciate the question of fact stage and that it is more of a general standard approach.
  • Fair comment
    • If an opinion is expressed, are the facts the opinion is based on sufficiently noted for the ordinary person to consider?
      • This requirement is not specifically included in s 31.
  • Answering questions
    • Don’t religiously follow the IRAC method.
    • If you think there’s a relevant star case for the question, don’t list the law and then go through the application
      • Note that the star case is relevant, that there are differences in opinion, which will be raised in the application.
  • Non-delegable duty
    • NSW v Lepore – Don’t worry.
    • Leichhardt Council v Montgomery (whether a council should have exercised a statutory power) – Don’t worry.
  • Defective structures
    • Builder, engineer
      • Woolcock – domestic, commercial
      • Bryan v Maloney – classified as pure economic loss
  • Relational economic loss
    • Damage to someone else’s property and as a result, you suffer pure economic loss.
  • Furniture damage –Volli v Inglewood situation. Not pure economic loss. Property damage.
  • Look at Caltex Oil in the context of Perre v Apand. It was a move from the exclusionary rule, which was an important step, but it’s a bit outdated. So yes. Perre it up.
    • NB: Traditional exclusionary rule no longer applies.
  • In a contemporary context, consider Bryan v Maloney in the context of Woolcock Street Investments.
  • There’s a fundamental difference between duty and breach.
    • Duty: prospectively.
    • Breach: retrospectively.
  • Novel cases
    • Allsop
    • Control, vulnerability
    • Appreciate different areas on weighting of factors.


  • Pre-existing relationships – question is of breach.

Public body liability

  • What McHugh said in Crimmins – in a novel case where a statutory body owes a person a duty and breaches said body, the following questions must be asked:
    • bleh.
    • This is useful but … in the joint judgment of Kiefel and , their Honours said that the search for a principle of when the common law should owe a statutory duty continues.
  • Graham Barclay Oysters Gummow J – [149]
    • Have to consider the relationship between the authority and the class of person (consider the statutory scheme, vulnerability, control etc.)
    • In Stuart v Kirkland-Veenstra, they refer to Graham Barclay Oysters, they put Crimmins aside and applied Graham Barclay Oysters. Look at footnote 152.

Economic Loss

  • NB: Wouldn’t look at Caltex Oil in isolation now that we have Perre v Apand.
  • Negligent misstatement
    • Barwick CJ’s formulation has been very influential.
    • No restriction to two-party in the formulation for DOC to be owed.
  • Tepko intention to induce – ballpark figure – dissent, sole sauce, information reliable.
  • If you apply the San Sebastian test, you should come up with the same result (as the Barwick one) – also for cases where the documents are put to the public at large
  • Defective structures
    • Sutherland Shire Council v Heyman
      • Was referred to in Kirkland v Stuart-Veenstra
      • Exercising discretionary power
      • Issue of vulnerability and control
  • More applied in NSW.
    • Woolcock Street Investments
      • Decided on a narrow point
  • Cautious in developing common law principles
  • Had not shown it was vulnerable
  • This decided the point.
    • Kirby – used ratio of Bryan v Maloney in Woolcock

Product liability

  • Bull v Rover Mowers

Defamation 2

  • Justification
  • Fair comment
  • Honest opinion
  • Qualified privilege – section 30/1

Workers’ Compensation

  • Basic idea … there is such a thing as survival of actions
  • Importance? In your exam prep, don’t worry so much about it.